I. Subject-Based Human Rights Conflicts and Their Integration

Human rights are enjoyed by specific subjects, but different subjects may not share human rights in a balanced way. During the novel coronavirus outbreak, the lack of resources to safeguard the rights to life and health and the restrictions of their allocation will inevitably reduce their availability and efficiency for some leading to ten- sions among different subjects. The right to life and health is the primary human rights for which the prevention and control measures are initiated. Here, the right to life and health will be highlighted to analyze conflicts of human rights values among different subjects and the legal principles and methods for the integration of those conflicts.

A. The relationship between the human rights of COvID-19 and nonCOvID-19 patients

Public health emergencies are often fierce and explosive, and can severely impact the medical system of a country and even the world. Even the most advanced national medical systems have not been able to quickly and fully respond to increased demand during the novel coronavirus outbreak. Experience shows that in the early stages when medical systems were on the verge of collapse, normal medical services are channeled to COVID-19 detection and treatment as much as possible. Meanwhile, there are other patients with severe or even life-threatening illnesses waiting to be treated. The treatment for non-COVID-19 patients and COVID-19 patients constitutes a conflict between the respective patients’ rights to life and health. Article 12 of the In-ternational Covenant on economic, Social and Cultural rights unequivocally uses the word “everyone” in stipulating the subjects of the right to health. ² To realize the right to health for everyone, the covenant stipulates four basic steps, with the fourth step “The creation of conditions which would assure to all medical services and medical attention in the event of sickness,” emphasizing again that this applies to “everyone”.Moreover, “even when resources are very scarce, countries must adopt relatively low- cost targeted programs to protect the disadvantaged members of society, ³ that is, “the most disadvantaged and most marginalized members or groups.” ⁴ Is this comment applicable to non-COVID-19 patients during the prevention and control period? Is it applicable to all non-COVID-19 patients always? There are of course no answers given to these questions. However, all the four major components of the right to health reflect the basic spirit of equal protection for everyone, that is to ensure “timely medical services to citizens in an emergency” ⁵ . “Availability” means that a country must have a “sufficient amount” of health resources for all patients. “Accessibility” regards “non-discrimination” as the first prerequisite. Discrimination here means active discrimination involving unreasonable differences, distinctions, and unequal treatment, as well as negative discrimination involving failure to provide corresponding resources and services. So, comprehensive and equal protection is the basic principle for se- curing the right to health in international human rights law.

This thesis believes that the following four basic principles should be upheld in handling conflicts among rights. The first is the principle of classified treatment. In today’s world, there are two medical models: the decentralized model featuring community autonomy and the centralized model under government leadership. Each has its own advantages and disadvantages, and respective institutional scenarios for application. During public health emergencies such as the novel coronavirus outbreak, it is advisable to draw on their advantages and avoid their shortcomings by combining them. Thus resources should be maximally mobilized for the concentrated isolation and treatment of COVID-19 patients. Meanwhile, treatment should be provided to other patients. Specifically, general patients should be treated at home, the moderately or severely ill should be treated in the community, and the critically ill, especially the terminally ill, should be given unified effective treatment with concentrated high-quality resources. “We must coordinate the medical treatment for COVID-19 and other patients to guarantee treatment for patients with other acute and severe diseases, medication supply for patients with chronic diseases, and accessible channels of treatment for general patients.” ⁶ The second is the principle of priority. It is indisputable that the priority of prevention and control is higher than non-epidemic needs which should be given up within reasonable limits. So, the key issue is not about which one should be prioritized, but the degree and proportion of prioritization. Prioritization should be defined from two aspects: in terms of quality, medical resources should be allocated for responding to COVID-19 pandemic to prevent the spread of the virus, that is, epidemic prevention and control and the treatment of COVID-19 patients should be prioritized over ordinary patients; in terms of quantity, other patients, especially those with mild symptoms, should transfer some of their rights under such emergency conditions. The transferred rights can be mainly quantified as two types of rights, the right to choose high-quality medical resources and the right to hospital treatment. The third is the bottom-line principle. Giving priority to COVID-19 patients does not mean giving up patients with other diseases. On the contrary, we should uphold the bottom line of providing basic medical services to patients severely ill with diseases other than COVID-19. The medical system should allocate some resources promptly or reserve limited resources to guarantee basic rights such as hospitalization for critically ill patients. Fourth is the principle of derogation. Given the limited or even extreme lack of resources at the peak of the epidemic, a differentiation should be implemented among non-COVID-19 patients: the rights of critically ill patients should not be reduced, the rights of non-critically ill patients can be curtailed to retain necessary resources for COVID-19 patients.

The legal boundary of human rights derogation is the protection of the right to life. When the right to life is endangered by a public health emergency, it should be the focus and other human rights can be restricted. However, the restriction shall not exceed the degree necessary for prevention and control. Article 4 of the International Covenant on Civil and Political Rights stipulates that “In the time of a public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin.” The Syracuse Principle on the Limitation and Derogation Provisions in the International Covenant on Civil and political rights, which interprets the human rights derogation of the Convention, stipulates in Article 25 that “Public health may be invoked as a ground for limiting certain rights in order to allow a state to take measures to deal with a serious threat to the health of the population or individual members of the population.” ⁷ Therefore, for non-COVID-19 patients, especially critically ill patients, their rights to treatment should not be abrogated according to Article 4, because their right to life is under the same threat as that of COVID-19 patients. For non-COVID-19 patients without critical illness, because their right to life is not endangered, appropriate derogation should be exercised and priority should be given to protecting COVID-19 patients. All these are legally sound and well-founded principles. However, in no case should we completely ignore the medical treatment rights of non-COVID-19 patients. We believe that rights applicable for derogation are restricted to the use of high-quality resources and the right to choose medical resources, while people’s basic right to medical treatment should not be derogated. The basic right to medical treatment consists of having access to essential drugs and medical programs. To this end, it is important to establish a government-led platform helping to overcome the disorder of social self-organization and release social vitality to the maximum through the strong intervention of public power.

B. The relationship between the human rights of the elderly and the young

When an overburdened medical system becomes unable to receive all COVID-19 patients, it will cause a humanitarian crisis. This is by no means alarmist. According to reports, Italy called on the elderly to allow treatment priority for young people. Its medical organization SIAARTI (Society Italiana di Anest-esia Analgesia Rianimazione e Terapia Intensiva) issued a guidebook for medical workers, stipulating in Article 3 that “a threshold be established for ICU treatment and priority given to young people in order to save medical resources and achieve the best results. Some hospitals gave up on patients over 65 years old and no longer put them on ventilators. ⁸ British Prime Minister Boris Johnson recommended adults over 70 years old self-isolate for four months. ⁹ In the United States, COVID-19 was called by some young people the “boomer remover” ¹⁰ , a term metaphorically synonymous with “elimination of the elderly.” The root of this mentality can be traced back to the George W. Bush administration which, to calculate the price of reducing premature mortality, changed the practice of valuing each life saved at US$6.1 million, and adopted an age discount: the life of people over 70 was valued at only 67 percent that of a young person. ¹¹ Sacrificing older people’s lives to make their children and grandchildren inheritors is “a deceptive fantasy,” because it “may cause a large number of elderly people to sacrifice their lives for young people.” “People aged 60 and above became more vulnerable in this crisis, not just to the virus but also to age discrimination. ¹²

To reconcile the human rights conflicts among different subjects, we must first adhere to a basic concept: respect the value of every human equally, and overcome social Darwinism. Discrimination against the elderly seems to have a theoretical basis, since “the best or the most organized, or the healthiest, or the most active, or the most protected, or the smartest — in the long run, people who meet those conditions are bound to have an advantage over others.” ¹³ The COVID-19 outbreak exacerbated “ageism” and “intergenerational tension,” ¹⁴ harming justice, and posing a relentless challenge to the shared human rights of all human beings. For this reason, we must adhere to the rational principle of interest measurement and discard the inhuman thinking of selective treatment. The elderly were abandoned because there was no other way out, and it is impossible to judge what is right and wrong from the level of justice in specific cases. However, this does not mean that we can watch and not see it, nor does it mean that we can remain silent. On the contrary, we must exercise rational examination from a social perspective. In this sense, this phenomenon is undoubtedly a copy or variant of the “Law of the Jungle” and the “Cave Case”. Human rights jurisprudence states that all people are equal, and the values of different individuals cannot be compared. The value of individuals cannot be judged simply by their contributions to society. Otherwise, we will inevitably fall into the dangerous situation of hierarchical theory and racial superiority.

Second, we must introduce an external perspective on distributive justice and create the necessary social conditions for realizing it. Western theorists on justice, whether it be Aristotle or Rawls, only elaborate justice in the real sense of the term. Even though Rawls talked about the justice of the social system, he restricted his elaboration to the distribution of existing resources, without mentioning external resource supply for institutional justice. In fact, the justice of distribution not only involves the institutional arrangement of how existing resources are distributed but also directly relates to whether the supply of resources is sufficient. In the extraordinary period of the COVID-19 pandemic, it will be of no avail if people only study the former ignoring the latter. This is the “theoretical evil” that leads to selective treatment. In general, when medical resources are sufficient to meet the needs of society, the scientific allocation of internal medical resources will satisfy distribution justice. However, in extraordinary periods, we must resort to external resources.

Therefore, the following should be emphasized. First, conceptually we must shift from the allocation of internal resources to the use of external reserve resources and their arrangement and mobilization, and build a legal system for the use of medical emergency reserve resources. Second, in terms of content, we must clarify the legal nature, content and relevant rights and obligations of emergency medical supplies, especially the subjects and forms of responsibility. Third, in terms of subjects, we must establish and strengthen a national reserve center for emergency medical materials according to law, and define legal powers and responsibilities, with the focus on the method for performing duties and legal responsibilities. Fourth, in terms of implementation, we must enhance capacity building, and make emergency medical material supplies an essential element of social welfare, by incorporating capacity building in the national budget system and social assistance system, and supplementing it with effective support from private forces. To ensure the acquiring of resources and the se-curing of supply links and mutually support each other, we must modernize material raising system and financing capacity, as well as the allocation system and capacity to effectively prevent medical institutions from directly accepting donations, weak charity organizations and other ineffective material raising or bipolar pattern with disorderly allocation. Fifth, in terms of time, we must go beyond short-term arrangements, normalizing the emergency thinking. As the saying goes, “Armies are maintained for years but are used on a single day.” The emergency resources are required because of occasional and sudden outbreaks. However, the supply of epidemic prevention and control materials is by no means simply a matter of temporary mobilization. An ep- idemic is not just about a disease, but also about material shortages. Therefore, two changes in thinking are also necessary, namely, from emergency thinking to general thinking, and from abnormal thinking to normal thinking, to organically normalize the reserves. In this regard, an important criterion is, to some extent, “whether or not the state has achieved the most appropriate balance between financing the public health care system and regulating the costs of private health plans.” ¹⁵

A. General principles
 

The right to life, freedom, property and education, and social rights are the basic human rights that have received much attention during the novel coronavirus outbreak. Regarding the order of these rights, Western jurists believe that “If asked what is the most important individual right in Western law, most jurists would answer: ‘life.’” Indeed, human life is protected in the most primitive legal system.” ²² The reason is that in the hierarchy of interests, “life is a prerequisite condition for protecting other interests (especially all personal interests), so it should be declared as superior to property interests. Therefore health interests are of a higher in order than pleasure or entertainment interests.” ²³ From the perspective of legal norms, international human rights law and the constitutions of many countries put the right to life before the right to freedom. ²⁴ If so much emphasis is placed on the right to life and health, why has the prevention and control in some major Western countries with advanced medical technology and economic strength been seriously compromised, with soaring infections and deaths?

In this regard, some people point to living habits; some other countries, and some the culture. But looking at this from the perspective of human rights jurisprudence, we can see the underlying reason. With the domination of individualistic human rights values, no emphasis on the right to life is enough to eliminate the deep-rooted prioritizing of the right to freedom or liberalism. A narrow individualistic perspective will make it difficult to achieve success in epidemic prevention and control as it undermines quarantine measures, and ultimately the right to life and health are sacrificed. Practice has proved that those countries and regions “putting people’s lives and health in the first place”, exercising stringent lockdowns and quarantines and comprehensively focusing on treatment have low morbidity and mortality ²⁵ with a decisive victory in epidemic prevention and control. Conversely, those raising the banner of so-called personal freedom, freedom of speech, and economic freedom, refusing lockdowns, quarantines, the use of masks or even treatment inevitably have become sacrifices on the altars of anti-science and anti-human rights. Of course, protection of the right to life and health does not necessarily mean total denial of the right to freedom whose restriction or even sacrifice should be limited to a reasonable extent. So, how is this extent defined? The answer directly involves a basic theoretical issue in human rights law, namely, how to coordinate the value conflict between the rights to life and health and the right to freedom. The solution to this issue has become the key to the success of epidemic prevention and control. Here, the principle of value integration between the right to life and health and the right to freedom can be summarized as follows: First, the principle of priority, that is, the right to life is higher than the right to freedom; second, the principle of choice, that is, if and when the contradiction between the right to life and freedom is irreconcilable, the right to life must be chosen over the right to freedom; third, the principle of exception, that is, when the sacrifice of the right to freedom directly threatens the right to life, the right to freedom and the right to life are equally important, and the right to freedom must not be sacrificed.

Therefore, the bottom line should be held for the poor population. Then, it is necessary to distinguish between the economic interests of the elite and the right to work of the poor. If “saving the economy” ³⁵ is conducted at the expense of the health and lives of most people, it is essentially impossible to eliminate economic inequality. Worse still, the interests of the elite are prioritized. Therefore, this part of the right to economic freedom must be strictly restricted. But, can workers in poverty still enjoy the right to work at the peak of the epidemic and refuse to close the city? Independent UN experts emphasized the special protection of the basic right of survival for work-ers who must work to support their families, ³⁶ but satisfying their right to work under such dangerous circumstances will undoubtedly make things worse.

Therefore, it is necessary to shift from the perspective of economic rights, especially the right to work, to the perspective of social rights. Debt reduction, paid vacation, and government subsidies should be established as legally mandatory norms and effectively implemented to curb economic freedom and promote economic equality concurrently. The special social security system based on major public health emergencies should be strengthened, and maximum economic justice should be achieved through social security rather than blindly resuming work and production. Although such a mechanism should be applied only for the duration of the emergency.

4. Restoration of justice

When epidemic control is stabilized, especially when any cordon sanitaires are lifted, the restoration of economic freedom is of fundamental significance. The novel coronavirus outbreak has severely affected the economic development of all regions worldwide, and the “great lockdown” has resulted in the most serious economic recession since the Great Depression, and greater devastation than the global financial crisis. The International Monetary Fund predicted in it World economic outlook released in April 2020 that the economy will shrink by 3 percent in 2020. It forecasts that the growth rate for developed economies will be minus 6.1 percent, for Latin America and the Caribbean minus 5.2 percent, for South Africa minus 5.8 percent and ASEAN minus 0.6 percent. It estimates that China’s economy to grow by 1.2 percent, compared with 6.1 percent in 2019. ³⁷ The slowed growth is bound to pose new challenges to realize economic rights and other economic human rights. Therefore, studying challenges and finding solutions in the protection of human rights, especially economic ones, in the post-epidemic era, is of long-term importance.

C. The holistic approach

Ensuring individual civil political rights or socioeconomic rights alone cannot solve the above problem. Therefore, it is necessary to introduce a “holistic” approach. A comprehensive plan should be implemented to promote human rights via development incorporating international human rights conventions instead of discussing economic rights on a matter-of-fact basis. This involves the basic principles of the relationship between development and human rights. The United Nations 2030 Agenda for Sustainable Development has integrated elements of the right to development and designed the three development pillars of “economy, society and environment.” Among them, life, health, the prevention and control of diseases, especially infectious ones, and universal social security are undoubtedly included in the right to development as one of the social development goals. The 2030 Agenda for Sustainable Development states in Goal 3 “Ensure healthy lives and promote well-being for all at all ages” that efforts will be made to “end infectious diseases”, “achieve universal health coverage, including financial risk protection, access to quality essential healthcare services and access to safe, effective, quality and affordable essential medicines and vaccines for all”, and “strengthen the capacity of all countries, in particular developing countries, for early warning, risk reduction and management of national and global health risks.” ³⁸ It can be seen that when conflicts arise between the right to life and health and the right to economic development, the principle of national responsibilities and global economic cooperation should be upheld to oppose the impacts of unilateralism and protectionism on the global fight against the virus.

 

From a legal point of view, order means the stability of relations, the effectiveness of rules, the expectable nature of behaviors, and the firmness of structure. ⁴¹ It is manifested in certain restrictions, prohibitions, and controls on social life, in the responsiveness and mutual complementation of social relations, as well as inconsistency, non-contradiction, and stability. ⁴² The expansion of freedom is tantamount to breaking prohibitions, interactions, and stable relationships. The normalized relationship between freedom and order is balanced and harmonious, but it should be repositioned in the fight against the COVID-19 pandemic. The repositioning is summarized as “free and unnecessary principle” in this thesis. Which means that freedom should be maximally restricted and that the right to personal freedom and other forms of freedom should be exercised only when necessary. For the rest, the exercising of the rights is prohibited or restricted. The repositioning means breaking the equilibrium,and abrogating the value of personal freedom. The value of the prevention and control order is made the main body and the proliferation of freedom eliminated to maintain the focus on the order of the epidemic control. Specifically, it is embodied in the following relationships.

A. Life order and freedom

Laws and policies for prevention and control should be strictly enforced. The strictest mandatory isolation and mandatory prevention measures should be implemented, and freedom in social life should derogate under the law. Meanwhile, public security management should be strengthened and the general mode of administrative law enforcement changed to a stringent crackdown on illegal acts of resisting epidemic prevention and control. Efforts must be made to strengthen legal services for epidemic prevention and control, enhance the resolution of conflicts and disputes, and provide effective legal assistance to those in need. ⁴³ To this end, we must focus on constructing an extraordinary and irregular order for emergencies in social life. We should clarify the legal nature of the social relationship to be regulated when transforming the normal state into an abnormal state, so to cure the “early syndrome” of hesitation and vacillation, and make rapid decisions based on scientific judgment. This is extremely difficult to truly achieve by countries around the world. Therefore, subject responsibility should be clarified at two levels: the public should shoulder the legal responsibility for accepting or refusing compulsory control, and the government is legally bound to make quick decisions and enforce them.

E. Order and freedom of media

The key difficulty lies in legally defining the relationship between the right to be informed and the social order. “It is necessary to enhance epidemic status reporting and publication according to law, and report the epidemic information timely and accurately in accordance with statutory content, procedure, method, and time limits.” ⁴⁹ The information release system should be standardized and strengthened for epidemic prevention and control according to law. Open epidemic information and transparent decision-making can stabilize society, calm the popular mind, and prevent social panic. In terms of content, the information release system should also report government decisions, resource requirements, scientific knowledge, public participation methods and other information on a real-time basis in the fight against the epidemic, aside from stipulating the epidemic situation. In terms of government decision-making, the Fourth Plenary Session of the 18 th CPC Central Committee clearly stated that “The decision-making mechanism shall be improved according to law. Public participation, expert argumentation, risk assessment, legality review, and collective discussion and decision shall be identified as legal procedures for major administrative decisions to ensure that the decision-making system is scientific, the procedures proper, the process open, and the responsibilities clear.” ⁵⁰ It can be seen that the disclosure of the number of infected cases, the severity rate of patients, and the mortality rate in the epidemic is the basis for improving social awareness of prevention and control. Disclosure involves not just the results; instead, it should include the disclosure of the decision-making process for epidemic prevention and control, implementation, and social supervision methods. Therefore, it is necessary to build a systematic information mechanism legalized and standardized as “the jointly built information mechanism for universal sharing.” The responsibility of information suppliers should be clarified in law. This applies not just to public medical institutions, but all medical organizations and medical staff to form a complete chain of the information supply system, and overcome the inability to accurately count the number of patients and deaths, and other defects.

F. Freedom of speech and public order

In the rational value sequence of freedoms, freedom of speech is of great significance to the fight against the COVID-19 pandemic. During the outbreak, as the existing emergency plan being challenged, the benign interaction between public power and private rights is the most needed in epidemic control. Opinions of the private subjects, who are the direct victims of the epidemic, come in continuous trickles. Only when converged as public will in a quick, free, and efficient way can these opinions lay a true and universal democratic foundation for public power to make scientific decisions. When fighting the epidemic, the power of public opinion was demonstrated in nearly all phases from the initial confusion to rapid response, strict lockdown, on- line ordering and distribution of basic daily necessities, blocking the last link of virus infection, and categorized treatment of all patients. Expert groups attracted many organized scientists, scholars, and volunteers to participate in decision-making, showing the fundamental functions of freedom of speech and public will. Meanwhile, the public was encouraged to express their opinions in an orderly and free manner, exercise the rights defined by the Constitution to make suggestions, comments, criticisms and supervision to maximally ensure scientific and efficient decision-making. Of course, speech going beyond boundaries of reason becomes a lie; when the bottom line of the law is lost, speech becomes rumor. Lies and rumors are not only the enemies of scientific prevention and control but also the culprits of public panic and social tearing. They seriously endanger social order and are bound to exacerbate the epidemic. Through the official refutation of rumors by governments at all levels, mainstream media, and scientists, the scientific knowledge, medical knowledge, and legal knowledge for epidemic prevention and control were timely transmitted, exposing the essence and harm of rumors. It is essential for preventing the so-called freedom of expression from violating normalized social order. The distortion of social values caused by the freedom of expression in the United States can be justifiably said to be an important cultural source of the COVID-19 pandemic. For example, the rumors of Bill Gates’ fight against the epidemic have seriously hampered social consciousness during the epidemic. Since the COVID-19 virus ravaged the United States, conspiracy believes directed against Bill Gates has been rampant in the United States. According to the Washington post, conspiracy theorists accused the Gates team of trying to use the COVID-19 pandemic for personal gain. According to the “Austin American Statesman” report released on April 25, 2020, people in Texas, the United States, held a rally to oppose the “staying order” and even shouted the slogan “Arrest Bill Gates”. ⁵¹ In extraordinary conditions, rumors are harmful and lethal in the prevention and control order. To this end, first, rumors should be classified and managed. Epidemic rumors can be divided into three main categories: rumors that violate medical science, rumors that hinder social governance, and rumors that disrupt public order. Scientific medical knowledge should be used to block the spread of pseudoscience and even feudal superstition, the science of isolated treatment, prevention, and control to break habitual thinking and even bad habits of life, and legal education to build a rational prevention and control culture. Second, law-based governance should be consistently combined with governance by virtue, and civilized moral standards integrated into the legal system for epidemic prevention and control to form a correct human rights culture and values. In short, the rumor prevention and control mechanism is as important as its epidemic equivalent. Governance based on both morality and law should be upheld. Governance and prevention should be exercised concurrently. In the end, legal governance, source governance, comprehensive governance, scientific governance will be achieved. Internet, big data, and artificial intelligence should be legally used to combat epidemic rumors for a good prevention and control order.

(Translated by QIAN Chuijun)